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Thursday, August 15, 2013

Moving Past the “isms” and Stereotypes in the Indian IP Discourse

For quite some time now, the
Indian IP discourse has been fraught with unrestrained stereotyping. Either
one is dubbed “pro-patentee/pro-right holder” or “pro-public interest”, as if these
are always entirely mutually exclusive, besides giving the false impression
that opinions necessarily stem from ideological proclivities and can never be
issue or fact-based.

I am not going to wax eloquent on
the virtues of a “middle path”. Instead, I wish to deal head-on with stereotyping,
motivated or otherwise, because if this trend is not resisted and
nipped in the bud, any and every alternative or dissenting view will be
silenced by slotting commentators in mutually exclusive and opposing factions.

One of the primary reasons that I want to deal with this trend is because it is a serious impediment to constructive ideation in the realm of Indian IP jurisprudence and policy. Instead of investing one’s creative energies in creating a consensus and forging practical/reasoned
solutions which strike a balance between incentivising innovation and
preserving the realm of commons, precious time is wasted in fending off biases
which are encouraged and perpetuated for multiple reasons. The most prominent reason typically is an insatiable hunger to remain the loudest and the most popular voice in a discussion. This is truly
the worst possible reason any person could have for taking a shrill tone or an
extreme stance on an issue of manifest public interest. And to put it mildly, this need to be heard the most is symptomatic of an exhibitionistic streak, which I think needs professional help.

It doesn’t take an IQ of 200 to
realize that the consequence of this trend is that the issue/subject takes a back seat,
and individual egos come to the fore. It is certainly possible and perfectly acceptable
that two people may never see eye-to-eye on any aspect of any issue, but then
the genuine way in true academic tradition to address the ideological chasm is to
debate and disprove, or to agree to disagree, instead of promoting a whisper
campaign that only results in turning the chasm to a schism.

For instance, my PIL against the
customs notification on Section 107A(b) of the Patents Act, which was dismissed
on grounds of lack of locus standi, has
been sought to be portrayed as part of some fictitious campaign to undermine
international exhaustion in the context of patents in India. The larger
perception that is being pushed by those who give motivated fodder to
such a sentiment is that I am supposedly an active pro-patentee commentator. Nothing
could really be further from the truth. Critically, I do not and I repeat, I do
not think it is hara-kiri to take a
pro-patentee stance. After all, every debate needs diversity of thought, and I have a right to hold an opinion. Importantly, thus far, I can safely state that my opinions have been guided by reason, rigorous legal research and experience.

My stance on Section 107A(b) is
not driven by any ideology. It was and remains an exercise in legal research which I undertook at a point when I felt that a particular line of thought was being accepted unquestioningly
without exploring the possibility of an alternative view (here’s a detailed article I
wrote on Section 107A(b) in the IJIPL). In fact, I have absolutely no issues in
considering the possibility of my interpretation of the provision being wrong. But then, that is not the point.

The point is this- analysing a
provision in a certain way must not be or become politically incorrect merely
because patentees could benefit from it. After all, some of the stated
objects of our Patents Act, as reflected in Section 83, are as follows:

(a) that patents are granted to
encourage inventions and to secure that the inventions are worked in India on a
commercial scale and to the fullest extent that is reasonably practicable
without undue delay;

(c) that the protection and enforcement
of patent rights contribute to the promotion of technological innovation and to
the transfer and dissemination of technology, to the mutual advantage of
producers and users of technological knowledge and in a manner conducive to
social and economic welfare, and to a balance of rights and obligations;

Besides, examples abound where in
the course of my analysis of a particular case or decision, I have come to
conclusions which the patentees in those cases may not agree with. For
instance, I wrote two
fairly detailed posts
on the violation of Section 8 by the patentee in Roche v. Cipla. In that case, I took the clear view that having
arrived at the conclusion of violation of Section 8, the Court ought to have
revoked the patent on Erlotinib. This was not based on any prejudice or bias.
Instead, it was an opinion based on the need for logical consistency and proper
statutory interpretation. Again, I agreed with the critical findings of the
Supreme Court in the Novartis
case.

This is not to say that I have
never taken a stance which is beneficial to patentees. However, these opinions
were an exhortation to strike a balance in the way our Courts enforce patents.
Having handled IP matters in the High Court and the IPAB, I have enough
experience and conviction to back my opinions on the manner and quality of IP
enforcement in India. Therefore, one finds it unfair and a tad bit unscrupulous
when genuine opinions are silenced through a sub-radar campaign.

I have tried my best to observe
restraint in ignoring these motivated voices by focusing on the subject, but now it has come to a point
where it is important to speak out lest silence is mistaken for weakness or lack of conviction . I
think it would help to bear in mind that the primary reasons for writing on IP issues on
informal fora like blogs are to increase one’s own conceptual clarity, to contribute to IP awareness and to engage members of the public in a discussion
on an issue which is bound to affect them. It appears that this initial spirit
of idealism has slowly given way to an atmosphere of one-upmanship and avoidable
negativity.

One sincerely hopes that this is a passing phase, and that gradually the spotlight will be back on the subject.